Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Tuesday, September 22, 2009

Carolyn v. Orange Park Comm. Ass'n (Cal. Ct. App. - Sept. 21, 2009)

I had to wait almost twenty full pages, but finally -- at the very end -- Justice Ikola said what I had been thinking about and wanting him to say the entire opinion.

The Orange Park Community Association has a series of trails for its homeowners. But it's nice; it links up to some other public trails, and while "technically" the public isn't allowed onto the private trails of the HOA, it's not like they actually care. They don't patrol the trails and kick people off. If you want to walk or ride a horse on the trails, as a practical matter, anyone can do it. In the HOA or not.

But there's a problem. Some people are using motorized vehicles on the trails. Which sort of ruins the experience -- as well as degrades the trails -- for everyone. So they jam some posts into the ground at the trailheads to stop this practice.

Which then generates a lawsuit. Not from the actual vehicle people, as they won't really have a claim. But instead from a figurehead -- one Evan Carolyn. Who doesn't even live in the relevant community, and who doesn't plan to drive a motorized vehicle, but who's disabled and says he'd "like" to ride on the trails "in a horsedrawn carriage" two or three times a month if he could, but can't due to the posts. Has he ever before ridden in a horsedrawn carriage on the trails, even before the posts? Nope. But he says: "No matter. The trails are public accommodations under the ADA and California Disabled Persons Act since anyone can use them. So you have to remove the posts." Oh, yeah. And pay my attorney a lot of money.

So the legal question -- aside from my gut reaction to the lawsuit itself -- is whether these trails are public accommodations. Sure, they're practically open to the public. But they're technically private. So does this qualify?

Justice Ikola ultimately holds that they don't. Rightly so, in my view. Something that I say even though I have a fairly expansive view of what constitutes a public accommodation. At least as applied to the facts of this case, I kept wanting Justice Ikola to say what he does on the very final paragraph of the opinion. Which seems to me totally correct as a policy matter, and which I'll forthrightly concede was present in my mind as I confronted the "purely legal" (balls-and-strikes) question of whether the trails were a public accommodation. Justice Ikola put it slightly differently in the final paragraph than I would have, but the sentiment is the same:

Finally, we note that classifying OPCA's trails as a public accommodation subject to the access standards of the ADA and California law could have perverse consequences for the disabled and able-bodied alike. Members of the public, including disabled individuals, currently enjoy the use of OPCA's trails without charge. Non-members of OPCA who use the trails are free riders — those on horseback quite literally so. Although there is no evidence in the record to support this observation, there are undoubtedly other owners of private property in California who tolerate trespasses upon their private recreational property. (See Civ. Code, § 1009, subd. (a)(1) ["It is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use"].) It would be unfortunate if property owners (including but not limited to homeowners' associations) presently inclined toward nonenforcement of their right to exclude the public from recreational areas changed their outlook because of fears of civil litigation conducted by individuals without an ownership stake in the recreational area at issue. Indeed, the most likely explanation for OPCA's neglect of its members' property rights is the cost and hassle associated with excluding nonmembers and including members. It is possible a decision contrary to that reached here could lead a previously apathetic association (or individual landowner) to invest in fences, security, access technology, and other means of excluding the public from privately owned recreational areas."

Darn tootin'. Which, among other reasons, is why I'm glad the plaintiff loses this one. It's not a suit in the public interest, in my view. To the contrary.